IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku'alofa

AC 25/2010

R

v

Dalgety

Scott, P 
8 December 2010 

Practice and procedure – leave to appeal application – indictment quashed – public importance question – leave granted  

On 23 April 2010 the respondent pleaded not guilty to an indictment containing a single count of perjury contrary to section 63(1) of the Criminal Offences Act (Cap 18). The indictment had not been signed and dated before the respondent was arraigned. On the date set for the commencement of the trial, 1 November 2010, the Court heard and allowed a defence motion to quash the indictment. Brief reasons for allowing the motion were delivered orally and on 5 November written reasons were published. The appellant filed an application for leave to appeal against the quashing of the indictment. 

The Court of Appeal decision was delivered on 15 April 2011 and will be reported in the 2011 Law Reports. 

Held: 

1. The primary judge explained that the decision to quash the indictment was a reflection of the unique circumstances of this particular case.

2. The court was satisfied that the decision raised a question of public importance which should be answered. Accordingly, leave to appeal was granted. 

Case considered: 
 Cumbes v Robinson [1951] 1 All ER 661 

Statutes considered: 
 Court of Appeal Act (Cap 9) 
 Criminal Offences Act (Cap 18) 

Rules considered: 
 Court of Appeal Rules 30 

Counsel for the appellant : Mr Kefu 
Counsel for the respondent : Mr Afeaki 

Decision 

[1] On 23 April 2010 the respondent pleaded not guilty to an indictment containing a single count of perjury contrary to section 63(1) of the Criminal Offences Act (Cap 18). 

[2] It is not disputed that the indictment had not been signed and dated before the respondent was arraigned. 

[3] On 1 November 2010, being the date set for the commencement of the trial, the Court heard, and after argument, allowed a defence motion to quash the indictment. Brief reasons for allowing the motion were delivered orally and on 5 November written reasons were published. 

[4] This is an application filed on 1 November, 2010 pursuant to section 17C(1) of the Court of Appeal Act (Cap 9), for leave to appeal against the quashing of the indictment. 

[5] Where, as in section 17C(1), provision is made for leave to appeal to be granted by the primary judge or the Court of Appeal, the usual and better course is for leave first to be sought from the primary judge. Although that was not done here, I am of the view that it is appropriate in this case that the application be heard in this Court.

[6] Order 10 Rule 1 of the Court of Appeal Rules provides that an application for leave to appeal must be made ex parte and may be determined by a single judge without a hearing. 

[7] It appears that notice of the application was given by the Crown to the respondent since I have before me a notice of opposition to the application filed on 23 November. In my view no notice of the application should have been given to the respondent since, until leave had been granted a valid notice of appeal was not available to be served (Cumbes v Robinson [1951] 1 All ER 661). I am also of the view that the notice of opposition is misconceived since there is no provision for a respondent's notice (similar to that provided for in a civil appeals by RSC 0.5 r 3) in a criminal appeal. The time to argue the merits of the appeal is following a grant of leave, not before. 

[8] Although the primary judge explained on 5 November that his decision to quash the indictment was a reflection of the unique circumstances of this particular case, I am satisfied that the decision raised a question of public importance which should be answered by this court. Accordingly, leave to appeal is granted.